The law and your child’s rights

Various Commonwealth and Victorian laws protect your child’s rights in education. DET policies outline how schools and supports for students with a disability should work, consistent with those rights.

This page gives an overview of the main legal protections for your child’s rights. Visit the section Tools and resources for summaries and links to all of the key government policies and guides that support your child’s legal rights to the learning and supports they need at school.

The Commonwealth Disability Discrimination Act and Disability Standards for education

The Standards intend to give students with a disability the same rights as other students. They set out the rights of students with a disability in education, schools’ legal obligations and steps schools can take to ensure that students with a disability do not experience discrimination, and can participate on the same basis as others. A school that breaches the Standards is acting unlawfully.

The Standards protect your child’s right to have the opportunity to learn. They state that ‘students with disabilities have the right to participate in educational courses or programs that are designed to develop their skills, knowledge and understanding, including relevant supplementary programs, on the same basis as other students’.

Under the Standards, participation ‘on the same basis’ means that your child must have opportunities and choices that are comparable with those offered to students without a disability.

‘Comparable’ does not mean the same. Indeed, the Standards require schools to make ‘reasonable adjustments’ to curriculum and programs, to ensure students with a disability can access school facilities and curricula, and participate at school on the same basis as those without disabilities. This also applies to enrolment, so it also covers prospective students seeking entry to a school.

The Standards also cover schools’ obligations and actions they can take in relation to:

“I think [its important] acknowledge the difficulties that schools face, to include students with disabilities. I don’t believe they are funded adequately [and] teachers have no training, unless they choose to do it. So it’s about always acknowledging what works, looking at what is working first, and then saying, ‘This isn’t working, what can we brainstorm about what might work?’

You do need to take it that bit further. I don’t mean a formal complaint. I just mean – let them be aware that you’re aware that there’s key responsibilities, and that there are guidelines that govern this. It’s not just something where teachers can just take it or leave it. It’s a right. Sometimes you just have to push a little bit harder to get it.” – Denise

The Standards cover all students with a disability, mental illness or medical condition

The Standards define disability more broadly than the eligibility criteria for funding under the Victorian Program for Students with a Disabilities, or PSD (or its equivalent in the Catholic and independent school sectors). The PSD aims to provide supplementary funding to enable schools provide support for their students with a moderate to severe disability. The PSD criteria apply to only about one in four students who have a disability.

The Standards also cover students with mental health issues, those whose disability has not been medically diagnosed, and those with chronic illness or other medical conditions – whether permanent or temporary, such as someone using crutches or a wheelchair for a broken leg. The law applies to any student with a disability, and requires that reasonable steps be taken to prevent the student from experiencing discrimination because of that disability.

Importantly, this means that even if your child is ineligible for PSD-funded support or does not have a formal medical diagnosis, their school must still make ‘reasonable adjustments’ to support their learning and participation.

The National Disability Coordination Officer Programme has produced a website guide to the Disability Standards for Education, which can help people with disabilities, parents and carers, and education provider to understand the most important parts of the Disability Standards for Education.

Victorian legislation and other protections

The Victorian Education and Training Reform Act (2006) sets out how all Victorian schools, training providers and the teaching profession are regulated. Issues covered include schools’ duty of care, student welfare and prevention of bullying and harassment, student discipline, the age of compulsory schooling, the right to full-time attendance, and that government schools must provide their core programs – ‘instruction’ – free.

The Victorian Equal Opportunity Act (2010) protects your child’s rights, making it unlawful for any school to discriminate against students based on their disability, and requiring all schools to take ‘reasonable steps’ to eliminate discrimination as much as possible. The EO Act also protects students from discrimination on the basis of other personal characteristics, including race, religion, gender, sexual orientation and physical features.

The Victorian Charter of Human Rights and Responsibilities (2006) (‘The Charter’) also obliges government schools to consider, promote and protect human rights when they deliver services. The Charter also provides protection against discrimination, including in education, and outlines a child’s right to protection in their best interests.

According to the DET:

Charter decisions in schools include decisions around enrolment, attendance, responding to behaviour concerns (including preventing the escalation of behaviours), the making of adjustments for students with disabilities, preventing and responding to bullying, use of restrictive practices including restraint, and decisions to suspend or expel a student. Rights protected by the Charter include the protection of families and children (including promoting the best interests of the child), the right to equality, and cultural and religious rights.​ (DET website – under ‘Student Engagement Policy’)

Australia is also signatory to a number of international human rights treaties that protect your child’s right to education, including the Convention on the Rights of the Child; Convention on the Rights of Persons with Disabilities and the Convention on Economic, Social and Cultural Rights. Visit the UN Treaty Collection website for links.

The DET concerns and complaints policy

The process that families can use to raise concerns or lodge complaints about their child’s education is outlined in DET’s Concerns and Complaints policy. We explain this policy in detail under A guide to the complaints process. This section also includes an outline of complaints processes for Catholic and independent schools.

A key principle of the DET policy is that concerns should be resolved, as much as possible, at the level where the problem occurred. If you have tried to resolve the problem at one level ­– for example at your child’s school – but are unhappy with the result, you can then take it to the next level, such as the regional DET office.

If you have been unable to resolve your concern or complaint through this process, you might be able to take your complaint to a human rights body, if you feel that your child’s rights have been breached under the Disability Standards for Education or other legal protections.

Our parent support workers can help you with concerns about your child’s school, but they cannot offer legal advice. You can contact the Victorian Equal Opportunity and Human Rights Commission for advice at any time – without making a complaint – on phone 1300 891 848 (TTY 1300 289 621) or email complaints@veohrc.vic.gov.au.

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